ex4-4.htm


    Exhibit
4.4

     

    Warrant
No.
____                                                                                                                                ______
__, 2008

     

    THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE FEDERAL SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), OR UNDER THE PROVISIONS OF ANY APPLICABLE STATE SECURITIES
LAWS.  THIS WARRANT AND ANY OF SUCH SHARES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
REGISTRATION UNDER SAID ACT AND ALL OTHER APPLICABLE SECURITIES LAWS UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.

    


    WARRANT
TO PURCHASE SHARES OF

    COMMON
STOCK OF OMNIMMUNE CORP.

     

    1.           Grant of
Warrant.  Omnimmune Corp., a Texas corporation (the “Company”),
hereby agrees that [__________________] (the “Holder”) is entitled, subject to
the provisions of this Warrant, to purchase from the Company, up to [____]
([______]) shares of fully paid and non-assessable shares of Common Stock (the
“Warrant Stock”) at a price as provided in Section 4 below (the “Exercise
Price”). The term “Holder” as used herein shall include any transferee to whom
this Warrant has been transferred in accordance with this Warrant.

     

    The term
“Common Stock” means the Common Stock, $0.01 value per share, of the Company as
constituted on the date hereof, together with any other equity securities that
may be issued by the Company in substitution therefor.  The number of
shares of Common Stock to be received upon the exercise of this Warrant may be
adjusted from time to time as hereinafter set forth.  The term
“Company” means and includes the Company as well as any successor corporation
resulting from the merger or consolidation of such corporation with another
corporation.

     

    2.           Exercise of
Warrant.  This Warrant may be exercised, as to the whole or any
lesser number of whole shares of Warrant Stock,  at any time during
the period commencing on the earlier of (i) six (6) months after the date on
which the Company or any successor thereto becomes subject to the reporting
requirements of Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended, or (ii) two (2) years from the date of issuance, and expiring
at 5:00 p.m., Houston, Texas time, upon and coincident with the fifth (5th)
anniversary of the date the Warrant becomes exercisable (such date referred to
herein as the “Expiration Date”). This Warrant shall
expire if not properly exercised in full by the Expiration Date.

     

    The
Holder may exercise this Warrant by presentation and surrender of this Warrant
to the Company prior to the Expiration Date at its principal office in Houston,
Texas, or at the office of its stock transfer agent, if any, with the Warrant
Exercise Form attached hereto duly executed and accompanied by payment (either
in cash or by certified or official bank check, payable to the order of the
Company) of the aggregate Exercise Price for the number of shares of Warrant
Stock specified in such form.

     

    Upon
receipt by the Company of this Warrant, together with payment in the amount of
the Exercise Price, at its principal office in Houston, Texas, or by the stock
transfer agent of the Company at such agent’s office, in proper form for
exercise, the Holder shall be deemed to be the holder of record of the shares of
Common Stock issuable upon such exercise, notwithstanding that the stock
transfer books of the Company shall then be closed or that certificates
representing such shares of Common Stock shall not then be actually delivered to
the Holder.  As soon as practicable after each such exercise of this
Warrant, the Company shall issue and deliver to the Holder a certificate or
certificates for the Warrant Stock issuable upon such exercise, registered in
the name of the Holder.  If this Warrant should be exercised in part
only, the Company shall, upon surrender of this Warrant for cancellation,
execute and deliver a new Warrant evidencing the right of the Holder to purchase
the balance of the Warrant Stock subject to purchase hereunder.

     

    3.           Transfer of
Warrant.  Any Warrants issued upon the transfer or exercise in
part of this Warrant shall be numbered and shall be registered in a warrant
register (the “Warrant Register”) as they are issued.  The Company
shall be entitled to treat the registered holder of any Warrant on the Warrant
Register as the owner in fact thereof for all purposes and shall not be bound to
recognize any equitable or other claim to or interest in such Warrant on the
part of any other person.  This Warrant shall be transferable on the
books of the Company only upon delivery hereof with the Form of Assignment at
the attached duly completed and executed by the Holder or by his or its duly
authorized attorney or representative, or accompanied by proper evidence of
succession, assignment or authority to transfer.  In all cases of
transfer by an attorney, executor, administrator, guardian or other legal
representative, duly authenticated evidence of his or its authority shall be
produced.  Upon any registration of transfer, the Company shall
deliver a new Warrant to the person entitled thereto.  This Warrant
may be exchanged, at the option of the Holder hereof, for another Warrant, or
other Warrants of different denominations, of like tenor and representing in the
aggregate the right to purchase a like number of shares of Warrant Stock, upon
surrender to the Company or its duly authorized agent. Notwithstanding the
foregoing, the Company shall have no obligation to cause this Warrant to be
transferred on its books to any person, or Warrant Stock to be issued, if, in
the opinion of counsel to the Company, such transfer or issuance does not comply
with the provisions of the Act and the rules and regulations thereunder, and any
applicable state securities laws (“Blue Sky Laws”).

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    4.           Exercise
Price.  Subject to adjustment as set forth in Section 6 hereof,
the exercise price per share of Warrant Stock (the “Exercise Price”) shall be
$0.50.

     

    5.           Reservation of
Shares.  The Company will at all times reserve for issuance and
delivery all shares of Common Stock issuable upon exercise of this
Warrant.  All such shares shall be duly authorized and, if issued in
compliance with the terms of this Agreement, shall be validly issued, fully paid
and non-assessable.  No fractional shares or scrip representing
fractional shares shall be issued upon the exercise of this
Warrant.  In lieu of any fractional shares or scrip, the Company shall
pay the Holder an amount equal to the applicable Exercise Price multiplied by
such fraction of a share otherwise called for upon any exercise of this
Warrant.

     

    6.           Adjustments.

     

    
      	
              (a)  
      

            	
              Capital
      Adjustments.  In case the Company shall at any time after
      the date this Warrant is issued: (i) declare a dividend on the outstanding
      Common Stock payable in shares of its capital stock, (ii) subdivide the
      outstanding Common Stock, or (iii) combine the outstanding Common Stock
      into a smaller number of shares, then, in each case, the Exercise Price in
      effect, and the number of shares of Warrant Stock, at the time of the
      record date for such dividend or of the effective date of such subdivision
      or combination, shall be proportionately adjusted so that the holders of
      the Warrant shall be entitled to receive the aggregate number and kind of
      shares, for the same aggregate Exercise Price as in effect immediately
      prior to such dividend, subdivision or combination, which, if such
      Warrants had been exercised immediately prior to such time, such holders
      would have owned upon such exercise and been entitled to receive by virtue
      of such dividend, subdivision, or combination.  Such adjustment
      shall be made successively whenever any event listed above shall
      occur.  Any adjustment under this paragraph shall become
      effective at the close of business on the date the dividend, subdivision
      or combination becomes effective.

            


    

     

    
      	
              (b)  

            	
              Mergers,
      Consolidations or Sale of Assets.  If the Company is a
      party to a reorganization (other than as provided for herein), or a merger
      or consolidation with or into another corporation, or the sale of the
      Company’s properties and assets as, or substantially as, an entirety to
      any other person, then, as a part of such transaction, lawful provision
      shall be made so that this Warrant shall pertain and apply to the
      securities and/or other property to which the holder of the number of
      shares of Common Stock of the Company then covered by this Warrant would
      have been entitled had this Warrant been exercised in whole immediately
      prior to the effective date of such reorganization, merger, consolidation
      or sale.  In any such case, appropriate adjustment shall be made
      in the application of the provisions of this Warrant with respect to the
      rights and interests of the Holder after the reorganization, merger,
      consolidation or sale to the end that the provisions of this Warrant shall
      be applicable after that event, as near as reasonably may be, in relation
      to any securities or other property deliverable after that event upon
      exercise of this Warrant. Any such adjustment shall be made by and set
      forth in a supplemental agreement between the Company, or any successor
      thereto, and the Holder and shall for all purposes hereof conclusively be
      deemed to be an appropriate adjustment.  The Company shall not
      effect any such reorganization, merger, consolidation or sale unless upon
      or prior to the consummation thereof the successor corporation, or if the
      Company shall be the surviving corporation and is not the issuer of the
      shares of stock or other securities or property to be delivered to holders
      of shares of the Common Stock outstanding at the effective time thereof,
      then such issuer, shall assume by written instrument the obligation to
      deliver to the Holder such shares of stock, securities, cash or other
      property as the Holder shall be entitled to purchase in accordance with
      the foregoing provisions.

            


    

     

    
      	
              (c)  

            	
              Notice to Holder of
      Adjustment.  Whenever the number of shares of Warrant
      Stock or the Exercise Price is adjusted as herein provided, the Company
      shall cause to be mailed to the Holder a notice (i) stating that the
      number of shares of Warrant Stock have been adjusted, (ii) setting forth
      the adjusted number of shares of Warrant Stock, (iii) the Exercise Price,
      as adjusted, and (iv) showing in reasonable detail the computations and
      the facts, including the amount of consideration received or deemed to
      have been received by the Company, upon which such adjustments are
      based.

            


    

     

    
      	
              (d)  

            	
              All
      calculations under this Section 6 shall be made to the nearest cent or to
      the nearest share, as the case may be; provided, however that, no
      adjustment in the Exercise Price shall be required if such adjustment is
      less than $.01; and provided, further, that any adjustments which by
      reason of this Section 6 are not required to be made shall be carried
      forward and taken into account in any subsequent
    adjustment.

            


    

     

    7.           Securities
Law Matters; Restrictions on Transfer.

     

    
      	
              (a)  

            	
              Investment Intent
      Only. This Warrant will
      be acquired for Holder’s own account, for investment and not with a view
      to, or for resale in connection with, any distribution or public offering
      thereof within the meaning of the Securities Act of 1933, as amended (the
      “Securities Act”).  Holder has no present intention of selling,
      granting any participation or interest in, or otherwise distributing,
      transferring or disposing of this
Warrant.

            


    

     

    
      	
              (b)  

            	
              Accredited
      Holder.  Holder (a) is an “Accredited Investor” as that
      term is defined in Rule 501 of Regulation D promulgated under the
      Securities Act, and has such knowledge and experience in financial and
      business matters as to be capable of evaluating the merits and risks of
      such Holder’s prospective investment in the Warrant; (b) has the ability
      to bear the economic risks of such Holder’s prospective investment,
      including a complete loss of Holder’s investment in the Warrant; (c) has
      not been offered the Warrant by any form of advertisement, article, notice
      or other communication published in any newspaper, magazine, or similar
      media or broadcast over television or radio, or any seminar or meeting
      whose attendees have been invited by any such media; (d) has had an
      opportunity to ask questions and receive answers from representatives of
      the Company regarding the terms and conditions of the Warrant and the
      condition of the Company’s business, including, without limitation, its
      financial condition; and (e) acknowledges that Holder has conducted its
      own due diligence with respect to the Company, the Warrant and any other
      matter which Holder believes to be material to a decision to lend and
      further acknowledges that Holder is making its investment decision based
      on this due diligence.

            


    

     

    
      	
              (c)  

            	
              Compliance with
      Laws.  Holder acknowledges compliance with the Uniting
      and Strengthening America by Providing Appropriate Tools Required to
      Intercept and Obstruct Terrorism Act of 2001, also known as the “USA
      PATRIOT Act.”  Additionally, Holder represents that neither it
      nor any of its principal owners, partners, members, directors or officers
      are included on: (i) the Office of Foreign Assets Control list of foreign
      nations, organizations and individuals subject to economic and trade
      sanctions, based on United States foreign policy and national security
      goals; (ii) Executive Order 13224, which sets forth a list of individuals
      and groups with whom United States persons are prohibited from doing
      business because such individuals and groups have been identified as
      terrorists or persons who support terrorism or (iii) any other watch list
      issued by any governmental authority, including the Securities and
      Exchange Commission.

            


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	
              (d)  

            	
              No Registration;
      Legend.  Holder acknowledges that (a) neither the Warrant
      nor any securities obtainable upon conversion or payment thereof have been
      registered under the Securities Act or the securities laws of any state or
      other jurisdiction in reliance upon exemptions from such registration
      requirements for non-public offerings and (b) the Company is under no
      obligation to register the Warrant or securities obtainable upon exercise
      hereof under the Securities Act or any securities laws of any state or
      take any action to make any exemption from such registration provisions
      available.  Such Holder acknowledges the Warrant and any
      securities obtainable upon exercise hereof must be held indefinitely
      unless subsequently registered under the Securities Act or an exemption
      from such registration is available.  Holder understands that no
      public market now exists for any of the securities issued by the Company
      hereunder and that there is no assurance that a public market will ever
      exist for such securities.  Holder agrees to the imprinting, so
      long as required by law, of a legend on this Warrant and the Warrant Stock
      should the Warrant be exercised in the following form or one similar to
      it.

            


    

     

    THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE
PROVISIONS OF ANY APPLICABLE STATE SECURITIES LAWS, BUT HAVE BEEN ACQUIRED BY
THE REGISTERED HOLDER HEREOF FOR PURPOSES OF INVESTMENT AND IN RELIANCE ON
STATUTORY EXEMPTIONS UNDER THE SECURITIES ACT, AND STATUTORY EXEMPTIONS UNDER
APPLICABLE STATE SECURITIES LAWS.  THESE SECURITIES MAY NOT BE SOLD,
PLEDGED, TRANSFERRED OR ASSIGNED, EXCEPT IN A TRANSACTION WHICH IS EXEMPT FROM
REGISTRATION UNDER PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER;
AND IN THE CASE OF AN EXEMPTION, ONLY IF THE CORPORATION HAS RECEIVED AN OPINION
OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH TRANSACTION DOES NOT
REQUIRE REGISTRATION OF ANY SUCH SECURITIES.

     

    8.           Notices.   All
notices required hereunder must be in writing and shall be deemed given when
sent by facsimile, delivered by nationally recognized overnight courier service,
delivered personally or within three days after mailing when mailed by certified
or registered mail, return receipt requested, if to the Company, at Omnimmune
Corp., 4600 Post Oak Place, Suite 352, Houston, Texas  77027,
Attention:  Harris A. Lichtenstein, Ph.D., Esq., President, and if to
the Holder, at the address for the registered Holder as it appears on the books
of the Company, or at such other address of which the Company or Holder has been
advised by notice hereunder.

     

    9.          Rights as a
Shareholder.   The Holder shall have no rights as a
shareholder with respect to any shares covered by this Warrant until the date of
issuance of such shares.

     

    10.        Lost or Destroyed
Warrant.   Upon receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant and, and upon surrender and cancellation of this
Warrant, if mutilated, the Company shall execute and deliver a new Warrant of
like tenor and date.  The Holder agrees with the Company that this
Warrant is issued, and all the rights hereunder shall be held subject to, all of
the conditions, limitations and provisions set forth herein.

     

    11.        Applicable Law.  The
Warrant is issued under and shall for all purposes be governed by and construed
in accordance with the laws of the State of Texas, without regard to conflicts
of law principles.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    IN WITNESS WHEREOF, the
Company has caused this Warrant to be signed by the duly authorized undersigned
officer, in the name and on behalf of the Company, as of the day and year first
above written.

    


    COMPANY:

    


    Omnimmune
Corp.

    


     

    By:           _______________________________

     

    Name:  Harris A.
Lichtenstein, Ph.D.

    Title:  President

     

     

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    FORM OF
NOTICE OF EXERCISE

    


    (To be
signed only on exercise of Warrant)

    


    


    TO:  OMNIMMUNE
CORP.

    


    


    The undersigned, the holder of the a
Warrant dated _______ to purchase _________ shares of common stock of Omnimmune
Corp., hereby irrevocably elects to exercise such Warrant for, and to receive
thereunder _________* shares of common stock of Omnimmune Corp., and requests
that the certificates for such shares be issued in the name of
_________________________, and delivered to ____________________ whose address
is __________________________________________________.

    


    


    Dated:                                                      

    


    


    __________________________

    (Signature
must conform in all respects to name of Holder as specified on the face of the
Warrant)

    


    


    


    


    *Insert
the number of shares of Warrant Stock as to which the Warrant is being
exercised.

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    FORM
OF ASSIGNMENT

     

    (To be
executed by the registered holder if such holder desires to transfer the
attached Warrant).

     

    FOR VALUE
RECEIVED, ___________ hereby sells, assigns and transfers unto:

     

    Name:                                

     

    Address:                __________________________________________

     

    __________________________________________

     

    __________________________________________

     

    Social
Security or Tax Identification Number ____________________

     

    


     

    a Warrant
to purchase ______ shares of Common Stock of Omnimmune Corp. (the “Company”),
together with all right, title, and interest therein, and does hereby
irrevocably constitute and appoint _______________ attorney to transfer such
Warrant on the books of the Company, with full power of
substitution.

     

    Dated:
___________________

     

    Name:       
__________________________________________

     

    Address: 
__________________________________________

     

    


     

    


     

    Social
Security or Tax Identification Number

     

    __________________________________________


     

    Signature:
__________________________________________

     

    NOTE:  The
above signature should correspond exactly with the name on the first page of
this Warrant.